SCOTUS Equality Ruling Good for Republicans?

Josh Barro makes a very interesting and compelling argument that if the Supreme Court ruled that there was a federal constitutional right of gay people to marriage equality, the big winners politically would be the Republicans. I think he’s probably right:

An expansive court ruling would settle the gay-marriage issue for good, eliminating the need for 20 years of state legislative fights that will be painful for gays and hugely politically damaging to the Republican Party.

Think about what will happen if the Supreme Court does not find a constitutional right to gay marriage. Popular support for gay marriage will continue to rise. A Washington Post / ABC poll out today has support at 58 percent, up from 37 percent in 2004. The trend toward support is accelerating, and support will probably reach two-thirds within this decade. But 30 states have constitutional provisions banning same-sex marriage; repealing these will take time and public effort, and they will persist long after they are unpopular.

Republican politicians will be in an uncomfortable situation: The remaining same-sex marriage bans will be very unpopular, but many in the conservative base will continue to favor the bans, and many Republican state lawmakers will vote against repealing them. And even after marriage equality becomes a settled issue in the north, Republicans will have to deal with the embarrassing problem of southern Republican politicians and voters clinging to their anti-gay laws — much in the way that the retrograde racial politics of some southern Republicans have created national branding problems for the party in recent years…

A Supreme Court decision imposing gay marriage nationwide will not only make this problem go away, but it will also give Republican politicians a useful scapegoat to impotently shake their fists at. They can say they wish they could continue the fight against gay marriage, but alas, those judicial activists at the Supreme Court have made it impossible. And then, gradually, everyone who cares about stopping gay marriage will grow old and die, and we can stop talking about the issue.

It’s hard to argue with that. In only ten years, public support for marriage equality has flipped so strongly that supporting equality, the political kiss of death only a decade ago, is now a positive for a campaign, and that effect grows stronger all the time. The same is true in the other direction, I think, with Roe v Wade. If the Supreme Court were to overturn that ruling, the chief political beneficiaries would be Democrats.

20 comments on this post.
  1. slc1:

    Unfortunately for the Rethuglicans, it is very unlikely that the court will proclaim same sex marriage to be a right. It is very doubtful that the swing man, Justice Kennedy, is prepared to go that far at this time. More likely is that the court will find a way to punt, thus kicking the can down the road.

  2. kevinkirkpatrick:

    Somehow, this analysis seems kind of… shitty. I mean, yeah, let’s ask the gay people in red states which they’d prefer:
    1) The right to marry their loved ones
    2) Political ammunition against Republican candidates of their states for the next 20 years.

  3. neonsequitur:

    I figure even if the Supreme Court does find that same-sex marriage is a Constitutional right, Republicans on the far right will still fight against it tooth and nail. (Did Roe v. Wade stop them?)

  4. slc1:

    Re neonsequitur @ #3

    They would renew their push for a Constitutional Amendment banning recognition of same sex marriage. The likelihood of this passing muster is far less then when DOMA was passed some 15 years ago.

  5. Robert Harvey:

    Yeah, the same way that conservatives gave up on abortion rights after Roe v. Wade.

  6. Steven Yukabacera:

    Okay, so, apparantly, on one hand, this “will also give Republican politicians a useful scapegoat to impotently shake their fists at” but at the same time, it will not “sow longstanding division”.

    Because stoking up resentment to fire up people to vote for your party never has consequences, right? Inflammatory rhetoric has never ever caused anything bad to happen. Or been successful by accident.

  7. Doug Little:

    neonsequitur @3,

    Yeah I was thinking the same thing but along the lines of government endorsement of religion. The first amendment hasn’t stopped them from trying to slot religion into every conceivable crack, without success I might add, that they can to satisfy the base of their party. I can see the marriage issue going the same way.

  8. doublereed:

    Eh, what matters is that gay people get their rights as quickly as possible. The right-wing nutjobs will still remain right-wing nutjobs who alienate minorities and women. In general, I think it’s weird to discuss politics as the ends, rather than the means.

  9. abb3w:

    @1, slc1

    More likely is that the court will find a way to punt, thus kicking the can down the road.

    It seems a tossup whether there will be a punt (standing as most likely means), or a limited ruling dealing with the two cases in a fairly narrow manner (California-only for one, DOMA-section-2 for the other). A sweeping ruling seems very much a long shot; about the only way I can imagine one coming down would be if the Howard University School of Law amicus brief makes a solid impression on Justice Thomas. Unlikely, but not impossible.

  10. fastlane:

    I don’t think it’s a matter that it will be good because the republicans can quit fighting against it, but it will be good because, like Roe v. Wade, the promise that they will continue to fight this losing battle for decades to come will help drive wingnut voters to the voting booth. So in that sense, yes, it’s ‘good’.

  11. Phillip IV:

    neonsequitur @ 3:

    I figure even if the Supreme Court does find that same-sex marriage is a Constitutional right, Republicans on the far right will still fight against it tooth and nail. (Did Roe v. Wade stop them?)

    That’s the beautiful thing about a broad pro-equality ruling from SCOTUS, from the viewpoint of a Republican strategist: Candidates in the reddest districts could still use the issue to rally the base where it’s numerous enough, but GOP candidates in somewhat bluer districts can evade the whole question with something semi-committal along the lines of “While I personally believe that marriage is between a man and a woman, the SCOTUS ruling has made gay marriage the law of the land” – which shouldn’t cause much damage on either side.

    They would have gotten a decade of political gain out of the issue, and have it killed dead before the decade of payback begins. I’d still be happier with that outcome than with seeing the same-sex marriage bans overturned state by state over 10 or 15 years, but I also don’t think that such a broad ruling is likely. But, you never know…if one of the justices does make the good of the GOP part of his (no gender-neutral pronoun necessary in this case) considerations, this might theoretically play a role.

  12. d.c.wilson:

    Republicans will benefit in that they’ll seem it as another wedge issue to convince the ignorant to vote against their own economic interests. They haven’t given up using abortion after 40 years and they won’t stop using gay marriage. Ever.

  13. Buzz Saw:

    @3 neonsequitur

    Did Roe v. Wade stop them?

    But public opinion on abortion hasn’t gone drastically against them. That’s the importance of the point/prediction in the article that “Popular support for gay marriage will continue to rise.” This is backed up by the fact that support is very high amongst voters under the age of 30. (If I recall, the numbers were in the 80′s for percent in support.) I find it highly unlikely that many of these youths will change their minds toward discrimination later in life. This youth vote that someday will no longer be the youth vote (as these voters get older), more than anything else, is why this could seriously hurt Republicans.

  14. gshelley:

    While I don’t see them claiming SSM as a right, DOMA looks to be threatened. All the arguments supporting it have been terrible, and it would take a strong commitment to opposing gay equality to find it constitutional. I just don’t see either Roberts or Kennedy. Once it has gone, we might have to wait for the first state that refuses to recognised a SSM performed in another state to be challenged under the Full Faith and Credit Clause, but I don’t know the precedents for that – can a state with a marriage age of 18 refuse to recognise one where one of the spouses is under 18, but they are legally married in their own state? Before Loving v Virginia, were there any such cases involving interracial marriage?

  15. conway:

    Since when do Republicans need something real to rally against?

    ACORN, Planned Parenthood, voter fraud, birth certificates, death panels…..

    It doesn’t matter. They will just make stuff up anyway. And their radical base will eat it up.

    I just want my uncle and the man he has been in love with and loyal to and faithful to for the last fifty years to be able to get married before they die.

  16. Childermass:

    gshelley@14: “can a state with a marriage age of 18 refuse to recognise one where one of the spouses is under 18, but they are legally married in their own state? ”

    I would think that if the marriage is illegal under its laws the state could choose not to give the couple the benefits that state law would provide. If I am not mistaken, this is currently only been done for same-sex marriages. The state would be unable deny any federal benefits of a marriage though. So it would not surprise me that when DOMA falls, someone might be able to force such a state that when it uses federal programs and money they would have provide the benefits via full faith and credit clause. Thus we will probably get a round of law suits.

    /This is speculation from a non-lawyer. Take with NaCl.

  17. Ichthyic:

    In general, I think it’s weird to discuss politics as the ends, rather than the means.

    Agree, but I would rather use the word “destructive” instead of “weird”.. Weird implies the behavior is unusual, and it most certainly is not.

    It is however, destructive, and always has been.

  18. Stacy:

    A Supreme Court decision imposing gay marriage nationwide will not only make this problem go away, but it will also give Republican politicians a useful scapegoat to impotently shake their fists at.

    They’re impotently shaking their fists at gay marriage now, and they’ll continue to do so no matter what happens.

    In one respect, a comprehensive Supreme Court decision would make it impossible for them to use anti-gay marriage propositions as carrots to entice their voters out to the ballots during close elections.

    But they have plenty of other Pavlovian hot-buttons. Abortion, women’s rights. The big one for the foreseeable future, I’m a-guessing, will be guns.

  19. hunter:

    As we’ve seen in Republican-dominated legislatures over the past couple of years regarding abortion rights, a broad decision by the Court is not going to end the fight. The social conservatives have the party by the balls at this point, and they’re not going to let go. The fight will just move to the state level, with bill after bill introducing restrictions on the right to marriage that will try to undercut any Supreme Court decision.

  20. tomh:

    @ #16

    I would think that if the marriage is illegal under its laws the state could choose not to give the couple the benefits that state law would provide.

    States have never been required to recognize marriages from other states. For instance, some states don’t recognize first-cousin marriages, and if a couple moves to such a state they can be denied state marriage benefits. Kentucky, in fact, defines first-cousin marriages as incest. States have refused to recognize marriages from other states for such reasons as too recently divorced, too young, lots of reasons. The only reason interracial marriage is allowed and recognized everywhere, is that the SC declared all such laws against it to be unconstitutional, so any laws against it were illegal and thrown out. States will only be forced to recognize and allow SSM when the same thing happens – the SC declares such laws unconstitutional. It won’t happen this time around.

Leave a comment

You must be